My OperaThe seller's readiness to remedy
Wednesday, July 30, 2008 9:00:06 PM
"In order to determine the occurrence of a fundamental breach regard is to be had not only to the nature of the lack of conformity but also to the readiness of the seller to remedy the non-conformity without unreasonable delay and unreasonable inconvenience to the buyer (Art. 48 CISG). In the case at hand, the Court excluded the presence of a fundamental breach of contract as the buyer had unjustifiably not accepted the seller's offer to remedy the non- conformity by delivering substituting goods, in accordance with Art. 48 CISG."
From the website
http://www.unilex.info/case.cfm?pid=1&do=case&id=223&step=Abstract
presenting a case from Oberlandesgericht Koblenz, Germany.
In such considerations as in the above case, it is important to evaluate how well the seller meets the criteria in article 48 (1):
These three conditions must be met;
1) «Without unreasonable delay»,
2) Without «unreasonable inconvenience» for the buyer, and
3) Without «uncertainty of reimbursement by the seller of expenses advanced by the buyer».
Conditions 1 and 2 mainly require a consideration of the term «unreasonable»: What is an «unreasonable delay»? What is an «unreasonable inconvenience»? These questions must be answered based on a consideration of the circumstances in each particular case.
These two conditions are also interfering with each other: If a long period of time elapses before a remedy is provided by the seller, it will be much easier for the buyer to claim that he has suffered an unreasonable inconvenience. The buyer’s problems may be so serious that the conditions in article 25 are met, giving him the right to declare the contract avoided according to article 49. An important part of this consideration is how badly the buyer’s interests are hurt. Unreasonable inconvenience for the buyer will easily be the case if the seller’s breach of contract leads to a hold in the buyer’s business, even if the seller paying damages may cover the buyer’s loss.
From the website
http://www.unilex.info/case.cfm?pid=1&do=case&id=223&step=Abstract
presenting a case from Oberlandesgericht Koblenz, Germany.
In such considerations as in the above case, it is important to evaluate how well the seller meets the criteria in article 48 (1):
These three conditions must be met;
1) «Without unreasonable delay»,
2) Without «unreasonable inconvenience» for the buyer, and
3) Without «uncertainty of reimbursement by the seller of expenses advanced by the buyer».
Conditions 1 and 2 mainly require a consideration of the term «unreasonable»: What is an «unreasonable delay»? What is an «unreasonable inconvenience»? These questions must be answered based on a consideration of the circumstances in each particular case.
These two conditions are also interfering with each other: If a long period of time elapses before a remedy is provided by the seller, it will be much easier for the buyer to claim that he has suffered an unreasonable inconvenience. The buyer’s problems may be so serious that the conditions in article 25 are met, giving him the right to declare the contract avoided according to article 49. An important part of this consideration is how badly the buyer’s interests are hurt. Unreasonable inconvenience for the buyer will easily be the case if the seller’s breach of contract leads to a hold in the buyer’s business, even if the seller paying damages may cover the buyer’s loss.
